* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-30321

(Summary Calendar)

CAROL WASHINGTON,Ind., and on behalf of the class

she represents. 5639 Bennington Ave., Baton Rouge,

Louisiana 70808,

Plaintiff-Appellant,

versus

LOUISIANA LOTTERY

CORPORATION, ET AL., 

Defendants-Appellees.

Appeal from the United States District Court

For the Middle District of Louisiana

(93-CV-1124)

 October 21, 1996

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges:

PER CURIAM:*

This is an appeal by Plaintiff-Appellant Carol Washington from

the district court’s order granting summary judgment against her on

employment discrimination claims brought under 42 U.S.C.

§§ 1981(a), 1983, 1985(3), and 2000e (Title VII). As Washington
2

failed to plead and demonstrate the existence of a viable cause of

action under any of those statutes, we affirm. 

I

FACTS AND PROCEEDINGS

As this appeal can be resolved purely on legal and procedural

grounds, the facts underlying Washington’s claim are not

particularly relevant. Washington is a black former employee of

Defendant-Appellee Louisiana Lottery Corporation (the Lottery), who

was hired in 1991 as an administrative assistant in the public

relations department. Washington’s stint in that department was

short-lived, however, because personality clashes quickly developed

between her and the department head, Kerry Pourciau, who also is

black. Pourciau notified Lottery officials that he was

dissatisfied with Washington and requested that she be removed from

the public relations department.

Washington was transferred to a new position in February 1992.

Keith Shuford, the director of human resources, decided that the

human resources and finance departments could use some extra help,

so he created a new position for Washington as administrative

assistant to both departments. The following autumn, Shuford asked

Washington to prepare a set of written job descriptions for the

various positions at the Lottery. In the course of doing so,

Washington reviewed the existing grade levels and salary scales of

all Lottery employees and came to the conclusion that black Lottery
1 See Graham v. Amoco Oil Co., 21 F.3d 643, 648 n.2 (5th Cir.

1994); Teply v. Mobil Oil Corp., 859 F.2d 375, 377 (5th Cir. 1988).

3

employees were paid less than their white co-workers.

The events that followed are unclear, but we adopt

Washington’s version for the purposes of reviewing the district

court’s entry of summary judgment.1 In early December, 1992,

Washington completed her task of preparing the Lottery job

descriptions. Then, on December 17, she and several other black

employees met with Lottery officials to express concerns about the

treatment of minority employees. Although Washington was not the

person who requested the meeting, she presented a memorandum to

everyone present in which she detailed the Lottery’s compensation

figures and argued that minorities were underpaid. That afternoon,

Washington met with one of the Lottery officials, who assured her

that no retribution would be forthcoming and told her that the

Lottery officials would try to open lines of communication between

employees and upper management.

On January 4, 1993, Shuford informed Washington that the new

position he had created for her was no longer necessary because the

human resources and finance departments did not have enough work to

keep her busy. Shuford offered Washington a clerk position in the

distribution center, promising that she would retain her current

classification and salary even though the Lottery classifies the

clerk position at a lower pay grade. Washington refused the offer,

and her employment was terminated the following day.
2 With respect to her claim for discriminatory failure to

promote, Washington failed to offer evidence that she had been

denied a promotion that was awarded to someone outside her

protected class. Further, with respect to her discriminatory

termination claim, Washington failed to offer evidence that the

Lottery had filled her former position at all.

4

Washington believes that the Lottery fired her in retaliation

for expressing her belief that black Lottery employees are paid

less than their white colleagues. She therefore filed this

employment discrimination suit against the Lottery and the

individual co-Defendants-Appellees Bonnie Fussell, Ken Brickman,

Randy Davis, Gwen Hamilton, Daniel Kane, Keith Shuford, Karen

Fournet, and Gerry Roy (collectively, the Employees).

Washington alleged in her pleadings that the defendants

violated Title VII, § 1981, and § 1983 by failing to promote her,

and eventually firing her, based on her race. She also alleged,

pursuant to § 1983, that the defendants violated her First

Amendment right to freedom of speech by firing her in retaliation

for expressing her belief that the treatment of black Lottery

employees was inferior to the treatment of white employees.

Finally, she alleged, under § 1985, that the Employees conspired to

violate her First Amendment right to freedom of speech.

The district court granted summary judgment for the defendants

on each of Washington’s claims. It rejected Washington’s first

claim -- that she was denied promotional opportunities and was

later terminated based on her race -- because she failed to

establish a prima facie case of discrimination.2 Washington does
3 See Matter of Texas Mortgage Servs. Corp., 761 F.2d 1068,

1073 (5th Cir. 1985) (holding that issues not raised on appeal in

the brief of the Appellant are considered waived and cannot be

noticed or entertained by the Court of Appeals).

4 Waltman v. International Paper Co., 875 F.2d 468, 474 (5th

Cir. 1989).

5 See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477

U.S. 317, 106 S.Ct. 2545, 91 L.Ed.2d 265 (1986).

5

not take issue on appeal with the district court’s dismissal of

that claim.

The district court also rejected Washington’s claims for

retaliatory discharge under § 1983 and for conspiracy under § 1985

because neither the Lottery, which is a state agency, nor the

Employees while acting in their official capacities, are “persons”

against whom recovery is available under § 1983 or § 1985.

Washington now appeals only the district court’s dismissal of her

§ 1983 retaliation and § 1985 conspiracy claims.3

II

ANALYSIS

A. STANDARD OF REVIEW

We review summary judgments de novo, applying the same

standard as the district court.4 Summary judgment is proper if the

pleadings and the summary judgment record show that there is no

genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.5 A dispute about a

material fact is “genuine” if the evidence is such that a
6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106

S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

7 Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.

8 See Savers Federal Sav. & Loan Ass’n v. Reetz, 888 F.2d

1497, 1501 (5th Cir. 1989); McDonald v. Board of Mississippi Levee

Comm’rs, 832 F.2d 901, 909 (5th Cir. 1987).

6

reasonable jury could return a verdict for the nonmoving party.6

In making our determination, we must draw all justifiable

inferences in favor of the nonmoving party.7

B. THE RETALIATION CLAIM

1. Title VII and § 1981

At the district court level, Washington failed to allege a

retaliation claim against the defendants under either Title VII or

§ 1981. Instead, her complaint cited Title VII and § 1981 only

with respect to the Lottery’s alleged discrimination in failing to

promote her and later terminating her employment. Washington does

not appeal the district court’s dismissal of these discriminatory

acts claims; instead, on appeal, Washington attempts to argue the

applicability of Title VII and § 1981, in addition to § 1983, in

the context of her retaliation claim. As Washington cannot assert

a new claim for the first time on appeal, we need not consider the

possible merits of her argument.8 Having thus implicitly waived

retaliation under Title VII and § 1981, Washington’s retaliation

claim must either stand or fall in the context of § 1983 alone.
9 See Will v. Department of State Police, 491 U.S. 58, 109

S.Ct. 2304, 105 L.Ed.2d 45 (1989).

10 Memorandum in Support of Plaintiff’s Response in Opposition

to Motion for Summary Judgment at 9.

11 Id. at 9-10.

7

2. Section 1983

Washington concedes that the Lottery is not a “person” for

purposes of ascribing liability under § 1983.9 Instead, she

focuses her argument on the Employees, whom she insists she sued in

both their official and individual capacities. Her insistence to

the contrary notwithstanding, we are convinced from our review that

Washington never sued the Employees in their individual capacities.

Washington fails to identify, and we are unable to locate on our

own, any indication in the record that she sued the Employees in

their individual capacities. In fact, the defendants noted in

their motion for summary judgment that they had been sued by

Washington only in their official capacities, which Washington

confirmed in her response, “Plaintiff in the case before the Bar

has indeed filed her action against the corporate entity as well as

the named individuals in their official capacities.”10 Washington

went on to indicate repeatedly in her response to the defendants’

summary judgment motion that she was seeking to establish liability

against the Employees only in their official capacities.11 

We have not held expressly that a plaintiff’s complaint must

state or clearly indicate in precisely which capacity a public
12 See Harvey v. Blake, 913 F.2d 226 (5th Cir. 1990).

13 See, e.g., Burns-Toole v. Byrne, 11 F.3d 1270, 1273 (5th

Cir.), cert. denied, --U.S.--, 114 S.Ct. 2680, 129 L.Ed.2d 814

(1994); Saldana v. Garza, 684 F.2d 1159, 1162 (5th Cir. 1982),

cert. denied, 460 U.S. 1012, 103 S.Ct. 1253, 75 L.Ed.2d 481 (1983).

14 Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099,

3105, 87 L.Ed.2d 114 (1985).

8

official is being sued; nevertheless, Washington cannot be heard to

declare in the district court that she has not sued the Employees

in their individual capacities and then, after she loses at the

trial court level, state the exact opposite on appeal.

Washington’s allegations against the Employees are expressly

premised on their official activities as employees of the Lottery.

Therefore, recovery against the Employees must be in their official

capacities or not at all.12

Alternatively, Washington seeks to persuade us that she has

indeed stated a viable § 1983 claim against the Employees in their

official capacities because their actions do not entitle them to

qualified immunity. Washington misunderstands the law. A public

official sued in his individual capacity is entitled to qualified

immunity from suit under § 1983 unless it is shown by specific

allegations that the defendant violated clearly established

constitutional law.13 In contrast, a suit against a public official

in his official capacity is deemed to be a suit against the

entity.14 As Washington concedes (and Supreme Court precedent

clearly dictates) that there is no basis for § 1983 liability
15 See Hilliard v. Ferguson, 30 F.3d 649, 652 (5th Cir. 1994);

Green v. State Bar of Texas, 27 F.3d 1083, 1089 (5th Cir. 1994).

16 Hilliard, 30 F.3d at 653.

9

against the Lottery itself, there can be none against its employees

in their official capacities.

D. THE CONSPIRACY CLAIM

Finally, regardless of whether some combination of the Lottery

and the Employees in fact retaliated against Washington, her

conspiracy claim is meritless. As the district court correctly

determined, neither the Lottery nor its Employees, while acting in

their official capacities, are “persons” under § 1985. Even if

that were not so, to state a conspiracy claim under § 1985,

Washington would have to show evidence that a conspiracy existed.

As the term suggests, a conspiracy requires the involvement of two

or more persons,

15 and as the employees of an entity are not

considered to be “persons” separate from such entity for conspiracy

purposes,16 Washington could not and has not stated a claim

cognizable under § 1985.

III

CONCLUSION

For the reasons set forth above, the summary judgment granted

by the district court is

AFFIRMED.